Aldridge v Marr Contracting Pty Ltd

The issues 4That is a neat encapsulation of what happened in the accident. I do not propose to add any more detail at this stage, because I will be referring to parts of Mr Aldridge's evidence which will include a description of what happened. I will also be referring to the issue of inconsistencies between the account given in the statement of claim and the account given by Mr Aldridge in court. I am going to approach this judgment by dealing with the following topics: the plaintiff as a witness; the breach of duty; the safe work method statements; contributory negligence; medical issues; the nature of the incapacity and the question of any loss in earning capacity.

Voir dire 5Before dealing with those specific issues, I should mention one matter to dispose of it at the outset. Evidence was given on the voir dire by Mr Aldridge. I should add that Mr Aldridge was the only witness called in the case. The voir dire evidence concerned a period of time in 2010 when Mr Aldridge was undergoing some rehabilitation from an addiction to prescription drugs and alcohol. I do not propose to reject the evidence. But nor do I regard the evidence as being relevant to any loss in earning capacity, apart from the fact that there was no claim in respect of a good part of 2010 and I will take into account the fact that he was undergoing that rehabilitation in any assessment of damages.

The plaintiff as a witness 6I will now deal with the first topic of Mr Aldridge as a witness. Mr Aldridge did not strike me as trying to contrive or embellish his answers. He did not appear to be evasive and he readily acknowledged when he did not know or was unsure of his answers. He did not appear to me to be defensive and he acknowledged his awareness of the risk of injury. He was obviously trying to stay in the workplace and, it seemed to me, not trying to maximise his claim. He acknowledged inconsistencies between the evidence he gave in court and other accounts which he had given to doctors and in the statement of claim. The doctors who examined him formed a favourable impression of his presentation. 7Mr D Kelly, who appeared for Marr Contracting, drew my attention to inconsistencies between Mr Aldridge's evidence given in court and accounts given by him to the doctors and in the statement of claim. I do not regard these inconsistencies as important. Mr Aldridge was not aware that there needed to be absolute consistency in the accounts which he gave at various times. The accounts which he gave to the doctors were some years after the accident. I must also bear in mind that accounts given by persons to doctors are in circumstances where the doctor has a specific interest in diagnosing and assessing the injury. I accept Mr Aldridge's account given in court as to how the accident happened and I do not regard his accuracy or reliability as compromised by the other accounts which he has given.

Breach of duty 8I turn now to the question of breach of duty. As the Full Court of the High Court said in O'Connor v Commissioner for Government Transport (1954) 100 CLR 225 at 229, an employer is under a duty "to take reasonable care for the safety" of employees. Their Honours went on to say at the following page that the "standard of care for an employee's safety is not a low one". A fuller and more specific formulation of the duty appears in the High Court's judgment in Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839. The Court, in a unanimous judgment, said the following at 842 ([12]): "An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in the case of repetitive work." I have omitted the footnotes. These principles were described in the following paragraph by the Court as "well founded." 9As well as a duty to provide a safe system of work, an employer has what their Honours described at 843 ([16]) as "another obligation" which is "to provide employees with suitable plant and equipment to enable them to carry out their work safely." As Mr D Kelly reminded me, Hayne J said in Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at 461 ([126]) that "the inquiry about breach of duty must attempt to identify the reasonable person's response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event, it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury." (The word "would" in the phrase "reasonable person would have done" is emphasised in italics by Hayne J.) 10Mr Aldridge's case, presented by Mr H Kelly SC and Mr G Wilson of counsel, is that Marr Contracting failed to provide panel grips. What they are will become apparent from the following description given by Mr Aldridge in his evidence. He remembered the panel being lifted and he had his eye on it to make sure no one was under it or that it would not hit anyone in the head or that it was too wide. (I should add this is the evidence he gave in examination in chief.) He lined the panel up and started to lower it down. He grabbed the rope to straighten it. It got to chest height and the crane stopped. 11Mr Aldridge then said that there are panel grips which connect. He said the tag lines, which were the ropes he had referred to, would not do anything. As the panel was coming down and stopped, Mr Aldridge said that he asked "Where's the panel grips?" He asked some other men who were on site. He said the answer was "We haven't got them. We don't know where they are." Mr Aldridge said that there was a heated discussion. The panel had to be brought up from street level onto the level which Mr Aldridge was working on, which was level one or two, and moved through a gap in a fence. Mr Aldridge said that the panel was a tight fit through the fence and he saw it move as it lowered. It moved a bit and he grabbed it. He tried to straighten it. He said it happened in a split second. The dowel, which is what is referred to in the statement of claim as a steel reinforcing rod, was on his hand. By the time he could radio the driver and the driver could react, it was too late and his hand was penetrated. 12He went on to describe what he meant by the panel grips. He said that they are like a vice. They are used to bring a panel down. It grips onto the panel and they are tied by hand. He described them as comprising a half metre bar, which can be used to lower the panel down because the bar is rigid and made of steel and is at a distance from the mechanism. He said he is familiar with that equipment and has used it before. Grips, he said, were available on previous days and he had used them. Indeed he said that he has not had to manoeuvre without a grip. 13When he was cross-examined by Mr D Kelly he acknowledged that he should not have put his hand between the panel and the dowels and he knew of that risk before the injury. He said that panel grips had always been available. On every job he had used panel grips where they were needed. They had different names. They could be called panel grips or clamps. Panel grips are used for that specific kind of load. They are not needed for other kinds of loads, which may need to be brought from the ground level up to a higher level. He knew that he had to exercise additional care because he did not have the grips. 14Marr Contracting's case, presented through Mr D Kelly, was that Mr Aldridge was an experienced, competent and skilled tradesman who made a bad judgment call. He was aware of the risk and had a choice about how to proceed once he became aware that the grips were not available. 15Mr D Kelly compared the case with the circumstances in O'Connor's case, where a trained plumber went onto a site and where a roof gave way and he was killed. But in Mr Aldridge's case there is not, in my opinion, what the High Court described at 230 as "any suggested course that was omitted" that could "really be regarded as reasonable." Here Mr Aldridge actually called for the panel grips. The grips were needed for this particular task with this size panel but not other tasks. They were needed in that particular instance, but they were not available. Indeed I note that O'Connor was not a case of failure to provide appropriate plant and equipment, which is apparent from the description of the plaintiff's case which appears around the centre of 228 of their Honour's judgment in O'Connor. 16Marr Contracting, through Mr D Kelly, also argues that Mr Aldridge could have used the tag lines, which are ropes which go around a panel and are secured, further up, to the chain by which the panel is attached to the crane. They were sufficient, Mr D Kelly argued. 17Mr D Kelly appropriately put these propositions to Mr Aldridge in cross-examination. Mr Aldridge fairly acknowledged that using a tag line to guide, or deal with a situation, did sound easy. But the answer was that it was not appropriate. He said that the tag line was a good four or five metres and that he had to pull the tag line. He had the radio in another hand and it did not really work. Trying to tighten the tension with a radio in one hand was not really an effective means of dealing with the situation. He said that force was needed to move the panel. He said that the tag lines had a good deal of slack in them, nor were they designed for the tight fit which the panel had to make through the gap in the fencing. The weight of the panel was too much to use the tag lines and the manoeuvre really had to be dealt with by use of a panel grip. I accept Mr Aldridge's explanation of the unacceptability of using tag lines in this particular situation. It was not in my opinion a viable alternative. 18I was urged by Mr D Kelly to note the reliance of an expert named Mr David Dubos, qualified on behalf of the plaintiff's solicitors. He is a consultant in industrial and public safety management and had relied, Mr D Kelly argued, on the provision of tag lines as a viable alternative for Mr Aldridge, in expressing his opinion. It does seem, as Mr D Kelly argued, that Mr Dubos assumed that the safe work management statements included provision for both tag lines and grips. I think that there is some force in Mr D Kelly's point. However, we know that there were tag lines present, but no panel grips. The question for me in this case, in my opinion, is whether the failure of Marr Contracting to provide panel grips for this particular manoeuvre was a breach of its duty of care to Mr Aldridge. I think I have to decide that in accordance with the evidence of Mr Aldridge and what I know of the facts about the manoeuvre, bearing in mind that I accept his account. 19An employer must be aware that an employee may not always act carefully. The employee may not have the opportunity to consider the risks and options and choose the best and safest course. Here Mr Aldridge was doing his normal job, which he was used to and skilled at. But he was confronted by a circumstance that required him to either abandon the manoeuvre or make a manual adjustment. He decided to make the adjustment and called for the appropriate equipment which would make the adjustment much safer. But that equipment was not available. It should have been available and had always been available in the past. He was by then committed - I do not say irrevocably - to finish the manoeuvre; so he did. Had the equipment been available, the accident would not have happened in my opinion. In other words, the absence of the device - being the panel grip - caused in a legal sense the injury. I reach the same conclusion as Mr Dubos, but by my own reasoning and independently of his opinion. 20In my opinion the failure of Marr Contracting to provide panel grips for the manoeuvre which injured Mr Aldridge was in breach of its duty of care to Mr Aldridge.

The safe work method statements 21I want to say something now about the safe work method statements. Two were tendered by Mr D Kelly on behalf of Marr Contracting. One was the Marr Contracting statement and the other was a statement by another operator on the site, Baseline. There is no specific mention in either statement of panel grips - using such an expression. There is mention of risks of hand crush injuries and descending loads contacting workers. Those descriptions articulate what happened in this case. They specify avoidance of the risk by not sticking hands between objects and by using tag lines to control loads. I note that in exhibit 4 (the statement by Baseline) at page 182.248 there is a very specific reference to use of "a tool to line up dowels, do not place hand beneath descending panel". That seems to me to coincide with the kind of tool described as a panel grip which Mr Aldridge was saying he had called for and which was not available. 22It is clear to me that, despite what the statements said, Mr Aldridge needed and should have been provided with a tool. I must also bear in mind the circumstance that Marr Contracting had in fact failed to provide Mr Aldridge with what he needed to safely complete his task. He was therefore exposed to an unnecessary risk. Mr Aldridge's non compliance with the statements needs to be seen in that context.

Contributory negligence 23Mr D Kelly argued that there was contributory negligence on the part of Mr Aldridge in that, regardless of his own safety and in non compliance with the statements I have just referred to, he put his hand between the descending panel and the exposed dowels. 24I was referred to the judgment of Schmidt J in Smith v Brambles Australia Ltd [2011] NSWSC 963. Her Honour very helpfully collected over [261] and following the various appellate authorities which deal with the question of contributory negligence. Her Honour referred to the passage in the judgment of the High Court in Czatyrko v Edith Cowan University, where their Honours had held at [18] that the "onus of proving contributory negligence lay on the respondent." Their Honours found in that case that the plaintiff's actions which were said to be contributorily negligent were "nothing more than 'mere inadvertence, inattention or misjudgement'." Their Honours were quoting from the High Court's judgment in Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301. 25Schmidt J had also referred to the High Court's judgment in Braistina. I should add that it was a judgment of Mason J, as his Honour then was, Wilson and Dawson JJ. Their Honours said the following at 310: "A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. But his conduct must be judged in the context of a finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks. The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgement, or to negligence rendering him responsible in part for the damage". I have omitted the reference to authorities. 26Schmidt J also referred to a judgment of the Court of Appeal in Ghunaim v Bart [2004] NSWCA 28; Aust Torts Reports 81-731. McColl JA reviewed the principles relevant to contributory negligence and Giles JA and Ipp JA relevantly agreed. At [61] her Honour referred to the notion of "thoughtlessness", which had been an expression used by the High Court in Bourke v Butterfield and Lewis Ltd [1926] HCA 38; (1927) 38 CLR 354. McColl JA went on to say that that word "is also expressed in synonyms such as temporary inadvertence to danger, lapse of attention, taking of a risk, carelessness by an employee due to confusion, fatigue or natural slackening of attention or preoccupation in what he or she is doing." 27Although in this case Mr Aldridge's actions were deliberate and intentional and not due to inadvertence or inattention, I must take into account the circumstances and conditions in which Mr Aldridge was doing his work. His work was being done in circumstances where he was at an advanced stage of the operation of lifting a very heavy panel from the ground and it was almost in place. Most of the work had been done. It needed a minor but significant adjustment towards the end. I think that Mr Aldridge's actions could be described as carelessness due to temporary inadvertence, taking a risk or to preoccupation with what he was doing. There was in my opinion no contributory negligence by Mr Aldridge.

Medical issues 28I turn now to the medical evidence. Dr Stephenson, an orthopaedic specialist, assessed Mr Aldridge on 16 March 2011 for the Workers Compensation Commission. Dr Stephenson noted a 26% right hand impairment. Dr Stephenson diagnosed a "healed compound fracture of the middle metacarpal bone right hand with adjacent stiffness of the fingers distally and the wrist proximally." He noted sensory loss in the hand and digital nerve injury. 29Dr Honner, an orthopaedic surgeon, saw Mr Aldridge on 14 July 2010 at the request of Mr Aldridge's solicitors. Dr Honner found a reduced movement and significantly reduced grip strength in Mr Aldridge's right hand. Dr Honner diagnosed a "severe crushing injury" to Mr Aldridge's right hand involving a "penetrating wound with a steel reinforcing rod some 2cm in diameter. This apparently caused multiple fractures of the long or middle finger metacarpal. Clinically these have now united." He noted that Mr Aldridge was left "with significant loss of movement and sensation in his right hand." Asked about Mr Aldridge's fitness for work, Dr Honner reported as follows: "In my opinion he is fit to carry out his normal duties as a dogman/rigger, but he is not able to carry out a job requiring prolonged heavy lifting or powerful gripping with the right hand, and he suffers ongoing symptoms in performing his normal duties as a dogman and fitter. He is fit to carry out this work on a full time basis, permanently into the future." He thought that Mr Aldridge's condition had now stabilised. 30Finally, there is a report from a Dr Couch, a specialist in occupational medicine. He saw Mr Aldridge on 22 August 2011 at the request of Mr Aldridge's solicitors. He noted on examining both of Mr Aldridge's arms that there was a "quite marked asymmetry between the forearms". It was such that Dr Couch was prompted to check the measurements several times. Noting that Mr Aldridge was right hand dominant, Dr Couch said "normally one would expect the right forearm to be" bigger than the left. His findings suggested "approximately 2.0 cm relative loss of girth in the right forearm, which strongly supports the fact that he is using the right hand less." Dr Couch's observations of the right hand included that he, the doctor, "could quite easily 'break' the flexion of his fingers and extend the fingers, causing some hand pain". The doctor said that this "indicates that Mr Aldridge would be quite limited with rigging tasks such as taking most of his weight temporarily hanging from his right hand."

The nature of the incapacity 31Dr Couch referred to Dr Honner's observations about Mr Aldridge's fitness for work and said the following: "With respect, although our clinical assessment of Mr Aldridge's hand injury are very similar, I do not consider these comments on work capacity to be accurate. Working as a dogman, and even more so as a rigger, intrinsically involves prolonged heavy lifting and powerful gripping with both hands. A rigger is required to climb on loads and sometimes at heights, manipulate tools and materials with both hands, and needs full function of both hands to maintain safety while doing so." Dr Couch expressed his opinion about Mr Aldridge's fitness for work, describing him as "definitely unfit to work as a rigger". Dr Couch went on to say that the work of a rigger "requires full, reliable and pain-free function of both upper limbs for both performing the duties and for safety. He does have a capacity for the less physically demanding duties of a dogman but still with restrictions, which are likely to make it difficult for him to secure long-term employment." 32Dr Couch recommended a number of restrictions that he would place on Mr Aldridge's employment, which he listed at page 13 of his report. He thought that with a "friendly" employer and helpful workmates Mr Aldridge "would probably get by as a dogman, but his obvious restriction in regard to the right hand...will make it significantly more difficult for him to gain employment." The prognosis, Dr Couch said, was "for no further improvement in his right hand". He did not find any "particular reason to anticipate the premature development of osteoarthritis in his right hand" but thought that Mr Aldridge's right hand function will diminish significantly before his normal retirement age and further restrict his work capacity associated with the normal processes of aging. 33Mr Aldridge himself described the restrictions on his working capacity and his efforts to return to work in the following terms. When he was at the top level as the main dogman he found that he had problems climbing, throwing and lifting. He said he could no do that. He became the dogman on the ground and he could not keep up with the workload. He found that every time he grabbed the chains they would bite in. He found he had no power and could not climb up everything. He said that a dogman needs both hands and needs to be tough. He pointed out that a dogman can hurt people if something is mishandled. He said his hand was constantly hurting and he needed to ask for help and he lost confidence. He said that a dogman has to lift very heavy weights and swap chains. He said that when the work was busy he could not do it. The problem, he said, was gripping, going up and down the scaffolding and climbing on trucks. 34Cross-examined by Mr D Kelly he said that he found restrictions on heavy lifting and powerful gripping. He acknowledged work that he could do, including work that he was employed to do at a site on The Rocks, where he was removing rubbish. He was working with bins and pulling scaffolding down. He was told what to do and a lot of his work was on the radio. One employer, Cosmo, had smaller cranes than Marr Contracting and there were smaller jobs. It was the same type of work, but not as hectic. He found he could cope at present. When that employer, Cosmo, got a particular job in Haymarket, it had to get a bigger crane and that is when he found he had difficulties. He said that small jobs are good, but with big jobs his hand aches. 35I accept this evidence given by Mr Aldridge. It is consistent with the medical evidence, which I have already referred to. There is in my opinion clearly a reduction in Mr Aldridge's working capacity.

Any loss in earning capacity 36The question finally is whether that reduction has brought about a reduction in Mr Aldridge's earning capacity and consequent economic loss. Mr Aldridge through Mr H Kelly SC and Mr Wilson says yes. But Marr Contracting through Mr D Kelly says no, except for some wage loss between the date of injury and 18 March 2009, when Mr Aldridge returned to work. 37Mr D Kelly points to Mr Aldridge being in almost continuous employment from March 2009, when he returned to work, to the present time, putting aside his period of rehabilitation in 2010. Mr D Kelly says that Mr Aldridge's employment history reflected the uncertainty of obtaining constant full time work in this particular industry. Mr D Kelly also says that the comparable earners selected and put forward to support a wage loss are not really comparable; their base salaries and overtime are different. Finally, Mr D Kelly says that Mr Aldridge has maintained plenty of overtime work and has the capacity for overtime, which varies from week to week depending on its availability. 38Mr Aldridge argues through his counsel that from 18 March 2009 to 30 June 2012, it is a matter of looking at his average net weekly earnings before the accident and comparing them to his actual wages over that time. From 1 July 2012 to date, one should look at the difference between Mr Aldridge's actual earnings and a figure provided by legislation which specifies a maximum for comparable earners and the two comparable earners which Mr Aldridge relies upon earned greater than that amount. 39I agree with Mr D Kelly that the wages of the two selected comparable earners are not exactly comparable to those which Mr Aldridge would have earned, but they were close. I think that they should be reduced by 10%. I bear in mind that they were produced under subpoena by Marr Contracting when asked to produce "wage records of two comparable employees employed in a similar capacity to the plaintiff from 1 January 2009 to 1 June 2013." I am quoting from exhibit F. This is not an admission by Marr Contracting, but it was a subpoena addressed to a party in the proceedings using the expression which I have quoted. It is, as Mr Kelly SC says, not an exact science. 40I regard the proposed way of assessing the damages for lost earning capacity by Mr Kelly SC as acceptable. I think Mr Aldridge has a substantial residual earning capacity which is reflected, as Mr D Kelly says, in Mr Aldridge's earnings since the accident, including his overtime. But his earning capacity is also significantly compromised, as I have found. In my opinion the difference between Mr Aldridge's pre accident earnings and the comparable earners are to a substantial extent the result of his reduced working capacity. 41However, because they are not exactly comparable and there could be fluctuations in the availability of work, the claim made on behalf of Mr Aldridge, which is set out in MFI 7, needs to be reduced. It seems to have been a period of good employment opportunities since the accident. But I also bear in mind, as Mr D Kelly pointed out, that before the accident during one tax period Mr Aldridge was dependent entirely on social security benefits. Although the working opportunities have been good since the accident, due to his working incapacity Mr Aldridge has not been able to make the most of it. I would reduce by about one third the assessment made in MFI 7 for lost earning capacity as it relates to the past and make an allowance for $45,000 for past loss in earning capacity. 42Accepting the figure of ongoing loss at $433 per week as per MFI 7, I also take into account the usual vicissitudes plus the vicissitudes of the market. A figure for vicissitudes of 15% has been factored into the figure provided. Because of the vicissitudes of the market and the estimate of the weekly wage loss of $433 being an estimate, I would use a discount for vicissitudes of 40% and round off the figure for future loss in earning capacity at $200,000. Based upon those two findings of $45,000 for past loss in earning capacity and $200,000 for future loss in earning capacity, I would make an allowance for superannuation loss for the past in the sum of $4950 and for the future of $22,000. HIS HONOUR: You need to help me with the sums here. 43Accordingly I enter a verdict for the plaintiff in the sum of $271,950. HIS HONOUR: Please do the sums. Take your time. Yes. Mr Wilson? WILSON: Yes. Thank you, your Honour. Your Honour, there is argument as to whether or not costs automatically flow from your Honour's judgment and there's also an argument as to whether or not the plaintiff is entitled to interest. I was wondering if your Honour could allow the parties some time to work that out between ourselves. HIS HONOUR: Yes. WILSON: And then have liberty to come back to your Honour if it requires further argument. HIS HONOUR: All right. WILSON: Would that be suitable? HIS HONOUR: That's suitable. Are the figures right? Are the sums right? BOND: I get the same figure, your Honour. WILSON: Yes. HIS HONOUR: Yes. 271,950. I just need to enter a judgment. BOND: Yes, your Honour. HIS HONOUR: Yes. 44In this matter I enter a verdict and judgment for the plaintiff against the defendant in the figure of $271,950. HIS HONOUR: So what's that question, Mr Wilson? Whether? WILSON: Because of the nature of the claim..(not transcribable)..damages, a costs order doesn't automatically flow from a judgment in favour of the plaintiff and there is some argument, which we both acknowledge. So if we could have time to sort that out. There's also an argument in relation to the question of interest on the judgment as well, which we press, and Ms Bond is going to obtain some instructions in that regard. HIS HONOUR: All right. So do you want me to - I'm around for another week. I'm around today, tomorrow and all next week. I'm sitting in crime. I've entered verdict and judgment. I'll get the process under way and I'll order a transcript and revise it and you want liberty to apply. But I think it should be this week or next week. How does that sound? WILSON: Yes. HIS HONOUR: Can you sort it out this week or next week? WILSON: We could sort it out by next week certainly, your Honour. HIS HONOUR: Yes. All right. 45I grant liberty to the parties to apply in respect of any question of costs or interest, that application to be made on or before Friday 30 August 2013, but not on that day please. WILSON: No. HIS HONOUR: Just give me some notice. WILSON: Certainly, your Honour. We wouldn't do it on Friday the 13th anyway. HIS HONOUR: All right. Anything else? WILSON: No. That's all. Thank you very much, your Honour. ADJOURNED

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 February 2014